“You don’t own me”—Protecting workers’ right to a private life

Dr Amanda Reilly's research highlights the current gaps and challenges in protecting employees' privacy.

How would you feel about your employer breaking into your house to read your private handwritten journal – the one that contains your most intimate hopes and dreams, your secret suspicions that members of the British royal family are lizards, and that the world might be flat, as well as occasional petty spiteful rants about your co-workers?

Would you think it was unfair if you lost your job because of this? How about if, when your employer broke into your house, they made a copy of your journal and sold this to third parties?

Would you be comfortable with your employer monitoring your facial expressions, your tone of voice, how often you speak, your heartbeat and your breathing patterns? How about if they do this in tedious meetings (the ones which could have been an email)? Or as you are walking to and from that meeting with your friend? How about when you are at home with your family?

Do you think that if you are polite and diligent at work that should be enough for your employer and that your private thoughts and what you do on your own time should be your own business?

If you answered yes to that last question, then I share that belief. Undoubtedly, many, even most New Zealand employers, share this opinion and would never dream of breaking into your house or selling your private information.  This does not change the fact that over the past two decades new technologies and shifting social norms have blurred the boundary between work and life.

In a nutshell my research is about what the law is doing to hold the line against employer overreach into workers’ private life; the short answer to this is - not nearly enough.

Many people do not realize the extent to which employers’ ability to conduct surveillance on their employees has increased. For example, so called “bossware” products on workers’ devices can be configured for real time continuous surveillance. This can include, amongst other things audio visual recording, browser history, social media monitoring, and time and location tracking. All this information can be collected, saved, and even searched without workers’ knowledge.

Even worse, as both the potential and the costs of surveillance on workers has decreased, companies are not just collecting and using an extraordinarily wide range of data for their own purposes. There is a market for employee data and, internationally many businesses are selling their workers’ information onto third party data brokers.

What is there to stop this, you may ask?

Globally, there are two main ways that worker’s privacy is regulated: One is through a mechanism known as “notice and consent” which you may be familiar with from every time you click on an “accept cookies” pop up as the price of accessing a website. The problem with this in an employment context is that it is very difficult for an individual worker to say no to their data being collected and on sold to third parties, when they need the job to keep a roof over their head.

The second main way that privacy is regulated is through “purpose limitation”. The idea behind this is that data may only be collected and used for “legitimate purposes”. The main limitation of this is that it is too broad and elastic to be an effective constraint in an unregulated and rapidly changing environment where is a whole industry looking for new uses for worker’s data.

As well looking at what current law is around the world, I am also looking at ways that law could be improved to stop extractive and exploitative practices and I am interested in how technology could be beneficially used to protect workers’ right to a private life. After all technology itself is neutral and it is up to us, as human beings, to decide whether and how it is used.

I am not working on this research alone. It is a collaboration with Professor Joshua Fairfield, an international law and technology specialist at Washington and Lee University in the United States. Professor Fairfield will be based in the School of Accounting and Commercial Law as a visiting scholar in the second part of 2024 and with the support of the Wellington School of Business and Government we will be running a workshop, which will create a space for dialogue around these issues with experts drawn from various fields. Our hope is that this conversation will raise awareness of the importance of protecting workers’ right to a private life as well as furthering understanding of how best to achieve this goal.